Purshottam vs State of Madhya Pradesh

A.K. Shrivastava, J.—Judgment passed in this appeal shall also govern disposal of connected Criminal Appeal No. 564/1999 (State of M.P. Vs. Rameshwar Dayal and others). Since, both the appeals have been filed against the impugned judgment passed by the learned trial Court. Feeling aggrieved by the judgment of conviction and order of sentence dated 12.07.1999 passed by the learned Additional Sessions Judge, Gohad District Bhind in Sessions Trial No. 152/1991 convicting the appellant u/s 324 of I.P.C. and thereby sentencing him for the period he had already undergone and fine of Rs. 2,000/-, in default further Simple Imprisonment for 6 months, this appeal has been preferred u/s 374 of the Code of Criminal Procedure, 1973.

The connected criminal appeal No. 564/1999 has been filed by the State of M.P. praying that respondent No. 3 Purshottam be convicted u/s 307 I.P.C. and acquittal of other co-accused persons namely Rameshwar Dayal, Satyanarayan and Smt. Lachhi Bai, be set aside and they also be convicted u/s 307 I.P.C. by passing suitable sentence.

In brief the case of the prosecution is that on 12.04.1991 at about 08:15 PM Harendra Prasad/injured went to the Police Station along with his sister Saroj and brother Krishna Murari where he lodged the report that house of accused Rameshwar is in front of their house. The bricks and cultivator were kept nearby house of accused Rameshwar. It is stated that accused persons threw the bricks and cultivator which were of the family of the injured persons and they also started hurling abuses. Thereafter it is said that accused Purshottam and Rameshwar fired the gun shot to injured Harendra Prasad and his sister Saroj.

On lodging of the said report the criminal law was triggered and set in motion. The investigating agency registered the case u/s 307/34 of I.P.C. The injured persons namely Harendra Prasad and his sister Saroj were sent for treatment and for obtaining their MLC report to Government Hospital at Gohad. The investigating agency prepared spot map, recorded the statement of witnesses, arrested the accused persons and seized the gun which was used as weapon in the commission of offence and after the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session from where it was received by the trial Court for trial.

Learned Trial Judge on the basis of the allegations made in the charge-sheet, framed charges punishable u/s 307 of I.P.C. against each of the accused person which they have denied.

In order to bring home the charges against the accused persons, the prosecution examined as many as 16 witnesses and placed Exs. P/1 to P/16 the documents on record. The defence of the appellant as well as other acquitted co-accused persons is of false implication and same defence they set forth in their statement recorded u/s 313 Cr.P.C. a plea of alibi was also set forth by the appellant that at the time of incident he was in the birthday party of son of Mahavir Prasad (DW-2) at Bhind and, therefore, the story of the prosecution is concocted and the witnesses are naming the appellant as well as acquitted co-accused persons on the ground of enmity.

The learned Trial Judge after scanning the evidence came to hold that except the present appellant Purshottam the prosecution has failed to prove its case beyond doubt against other accused persons namely Rameshwar Dayal, Satyanarayan and Smt. Lachchi Bai, as a result of which the charge framed against them u/s 307 IPC has not been proved. The learned trial Court on scrutiny of evidence further came to hold that charge u/s 307 of I.P.C. is also not proved against the present appellant, but held that charge u/s 324 I.P.C. is proved and eventually he has been convicted for the period already undergone by further sentencing him to pay fine of Rs. 2,000/- and in default of fine further 6 months S.I.

In this manner, the aforesaid two appeals have been filed by the appellants assailing the judgment of conviction and order of sentence.

The contention of the learned counsel for the appellant is that looking to the contradictions and omissions which have arrived at in the evidence of the witnesses it cannot be said that the present appellant has fired gun shot to injured Harendra Prasad (PW-1) and if that is the position the trial Court erred in convicting the appellant u/s 324 I.P.C. It has also been put forth by him that the story of the prosecution is concocted because at the time of incident, the appellant was enjoying the birthday party of son of Mahavir Prasad (DW-2) at Bhind and, therefore, it cannot be said that he was present at about 8:15 PM when the incident took place at Gohad. Lastly, it has been submitted by the learned counsel for the appellant that looking to the ambit and scope of Section 360 Cr.P.C. the reasons should have been assigned by the learned Trial Court for not extending the benefit of probation and since no such reason has been assigned although prayer has been made on behalf of the appellant Purshottam in that regard, therefore, looking to the totality of the facts and circumstances of the case the benefit of Section 360 Cr.P.C. be extended. In this regard he drew our attention to Para 30 of the impugned judgment.

On the other hand Shri Ajay Singh Rathore, learned Public Prosecutor argued in support of the impugned judgment and has submitted that learned trial Court has rightly held that appellant caused gun short fire on the injured Harendra Prasad but has wrongly convicted him only u/s 324 of I.P.C. According to the learned Public Prosecutor the appellant should have been convicted u/s 307 of I.P.C. It has also been putforth by him that there is overwhelming evidence to the effect that accused Rameshwar has also caused gun shot fire upon Saroj (PW-3) who is the sister of Harendra and if that is the position certainly Rameshwar should also be convicted u/s 307 I.P.C. According to the learned Public Prosecutor accused Satyanarayan and Smt. Lachhi Bai had also made an attempt to commit murder of injured Harendra, therefore they should be convicted u/s 307 I.P.C. Hence, it has been prayed that the impugned judgment of learned Trial Court so far as acquitting the accused persons Rameshwar, Satyanarayan and Smt. Lachhi Bai be set aside and they be convicted u/s 307 I.P.C. as well as the present appellant Purshottam be also convicted u/s 307 I.P.C.

Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part and connected Criminal Appeal No. 564/1999 which has been filed by the State deserves to be dismissed.

We do not find any merit in the contention of the learned counsel for the appellant that indeed the entire case of the prosecution is based upon the concocted story and the appellant was not present when the incident took place. The learned trial Court from Para 9 onwards by marshaling and examining and by paying heed to the evidence of injured Harendra has categorically held that appellant Purshottam has caused two gun shot fire. One gun shot fire hit to right Thumb of his hand while another gun shot fire was fired upon his sister Saroj (PW-3) which landed nearby her eye-brow.

The learned Trial Court by keeping the testimony of the injured Saroj (PW-3) in juxtaposition with the Harendra (PW-1), has categorically arrived at a finding that present appellant Purshottam caused gun shot fire upon Harendra Prasad. Since there are lot of discrepancies in the testimony of the eye-witnesses and by marshaling the evidence of all the prosecution witnesses viz a viz to each other the learned Trial Court further came to hold that prosecution has not successfully proved that co-accused Rameshwar fired any gun shot. We have gone through the reasons assigned by the learned trial Court and we have also gone through the deposition sheets of the witnesses and we find that rightly such conclusion has been arrived at by the learned Trial Court by giving benefit of doubt to the other accused persons namely Rameshwar, Satyanarayan and Smt. Lachhi Bai.

It would be pertinent to mention here that while examining the evidence of the eye witnesses the learned trial Court further came to hold that the role assigned by the co-accused Satyanarayan an Smt. Lachhi Bai is that they have thrown the bricks and cultivator which were kept nearby the Well. Thus their act would not fall from any angle under the ambit of Section 307 I.P.C. We are of the firm view that the learned Trial Court has not committed any error in acquitting the accused persons namely Rameshwar, Satyanarayan and Smt. Lachhi Bai from the charges punishable u/s 307 I.P.C. However, looking to the firm testimony of injured Harendra Prasad (PW-1), we find that upon firing the gun shot by appellant Purshottam, he sustained injury on his right thumb of his hand. The said injury finds place in the MLC report Ex. P/13 which has been proved by Dr. J.P. Gupta (PW-15). Indeed the MLC doctor was not examined because he was already dead but looking to the testimony of injured Harendra, it is proved that appellant caused gun shot fire to him. Although the fracture have been found on middle Phalanx of right ring finger but it does not transpire from MLC report that it was on account of gun shot fire.

The learned Trial Court has also taken pains and has assigned cogent reasons in Para 20 of the impugned judgment that why appellant is not convicted u/s 307 IPC. According to us, had it been the intention of the appellant to kill the injured Harendra Prasad since he was carrying 12 Bore Gun, no one prevented him to fire another shot on any vital part of the body. The learned Trial Court has dealt this aspect of the matter in detail in para 20 of the impugned judgment and thus learned Trial Court came to the conclusion that appellant had no intention to kill the injured and he did not make any attempt to commit murder, therefore, convicted the appellant u/s 324 I.P.C. After giving our anxious and bestowed consideration to the findings recorded by the learned Trial Court we do not want to deviate from such reasons.

However, we find substance in the argument of the learned counsel for the appellant that benefit of Section 360 Cr.P.C. ought to have been extended to appellant. On bare perusal of the finding we find that such a prayer was made before the learned Trial Court but without assigning any reason the prayer has been rejected and convicted the appellant. The Apex Court in the case of Bishnu Deo Shaw Vs. State of West Bengal, has categorically held that provision contained in Section 360 and Section 361 are mandatory in nature and reasons should have been assigned by the Court for not extending the said benefit, if the benefit is not to be given. The learned Single Bench of this Court in Prakash Vs. State of Madhya Pradesh 1993 Cr.L.J. 119 by placing reliance upon the said decision of the Apex Court has followed the same principles which has been laid down in the case of Bishnu Deo Shaw Vs. State of West Bengal (supra).

In the present case, a specific prayer was made by the learned counsel for the appellant before the learned Trial Court to extend the benefit of Section 360 Cr.P.C. but that prayer was not considered. Hence, we are of the view that looking to the facts and circumstances of the case, the benefit of Section 360 Cr.P.C. should have been extended by the learned Trial Court and we extend the said benefit to the appellant. The said benefit we are extending because no previous criminal antecedents has been shown against the appellant. The incident has also taken place long back on 12.04.1991 i.e. for last more than 22 years. The appellant was a Government servant and, therefore, we extend the benefit of said provision to the appellant.

Let a bond be submitted by the appellant in the Trial Court amounting to Rs. 25,000/- for not repeating such type of offence in future. Let this bond be submitted on or before 31.07.2013 before the learned Trial Court. The Registry is hereby directed to send the record post haste to the learned Trial Court so as to reach much earlier to this date. The appellant shall remain present before the learned Trial Court on 31.07.2013. He may also deposit the requisite bond earlier to this date. Resultantly, this appeal succeeds in part to the extent indicated above. However, the connected criminal appeal No. 564/1999 is hereby dismissed. The respondents of that appeal are on bail. Their bail bonds shall stand discharged. Let a copy of this judgment be kept in the record of Criminal Appeal No. 564/1999.